John Dugard(pictured left) is Emeritus Professor of International Law at the University of Leiden and Honorary Professor in the Centre for Human Rights at the University of Pretoria. John Reynolds(pictured right) is the EJ Phelan Fellow in International Law at the National University of Ireland, Galway.

‘Upper Nazareth is a Jewish city and it’s important that it remains so’, wrote its mayor Shimon Gapso last month. ‘If that makes me a racist’, he continued, ‘then I’m a proud offshoot of a glorious dynasty of racists’. Gapso was responding to criticism he had received over his call for the preservation of Jewish Israeli demographic superiority over Palestinians in his jurisdiction. He sought to undercut such criticism by situating his views as merely symptomatic of the core tenets of Zionism. His position, he suggested, is no more or no less racist than Herzl or Ben-Gurion and the pioneering Jewish settlement—with inevitable removal of Palestinians—that they espoused. While Gapso makes this admission of racism rather facetiously, so as to expound the ‘hypocrisy and bleeding-heart sanctimoniousness’ of his liberal Israeli critics, his comments go to the heart of Israeli policy vis-à-vis the Palestinians historically and contemporaneously: colonisation, displacement, and segregation. In pointing to security issues and the diverse political, socio-economic and cultural needs of the two population groups, Gapso essentially reproduces the vision of “separate development” that was central to apartheid in southern Africa. Apartheid was presented by its Afrikaner architects as not about oppression or denial of self-determination, but “separateness”.

Gapso’s comments mark the latest round in an ongoing debate over the role of ethno-racial dynamics in Israeli policy-making, and the nature of Israel’s institutional and legal regimes as they apply to the Palestinians. They came in the context of the relationship between Israeli authorities and Palestinian citizens inside the state’s borders. They are equally and arguably more prescient when considered in relation to the occupied Palestinian territories, where the narrative of an Israeli apartheid-like regime has gained particular prolificacy in popular and political discourse since the 1990s. More recently, the relevance of the normative prohibition of apartheid as articulated through the specific language of international law has come to the fore. Our article in the current issue of the European Journal of International Law explores international law’s engagement with questions of race, racial discrimination and apartheid. It considers the nature of Israel’s occupation of the Palestinian territories in that light, and concludes that the regime of discrimination and segregation imposed in the occupied territories is of a sufficiently institutionalised nature to be qualified as a system of apartheid. (photo: Israeli wall at Abu Dis, credit)

Yaffa Zilbershats’ reply to our article roots itself in the familiar refuge of Israeli exceptionalism, and parrots two standard talking points of Israeli government lawyers. The first is that as a mere occupying power, Israel’s behaviour in the Palestinian territories is not susceptible to the same standards by which a sovereign state would be judged. The second is that because Palestinians have committed acts of “terror”, Israel’s behaviour is not susceptible to the same standards by which a sovereign state would be judged. Both of these points are supported by almost exclusive reference to Israeli court decisions.

Occupation and Apartheid: “Apples and Oranges”

Zilbershats suggests that because Israel occupies the Palestinian territories without having formally annexed them (disregarding the fact that in the case of East Jerusalem it has done so), the state is bound there only by the laws of armed conflict. Israel can exempt itself from other spheres of international law, including, apparently, the prohibition of apartheid; its status as a jus cogens norm and explicit inclusion in the laws of armed conflict themselves notwithstanding. Zilbershats argues that, by asserting that regimes of apartheid and occupation can (and do) occur simultaneously, our article is guilty of ‘comparing apples and oranges’.

Apart from erasing several decades of Namibian history, this claim obscures the present reality that Israel’s colonisation of Palestinian territory goes far beyond the image of a temporary occupation that Zilbershats conjures up. With this “temporary” situation now approaching fifty years as the status quo and the settlement enterprise continuing apace, it is not merely a regime of belligerent occupation but also one of expansionary settler colonialism.

And settler colonialism is, of course, the core ideological project from which apartheid derives; the two are knitted together by the common underpinning logics of settlement, segregation and domination. Even the Geneva Conventions, very much European instruments written in a time of lingering European empire, warned against the danger of settlement projects transforming belligerent occupation into colonialism. Pictet’s commentary to the Fourth Convention reminds us that the prohibition of civilian settlement in occupied territory was included to prevent the occupying power from colonising territory for political and racial reasons. It was recognised that settlement entails colonialism. Colonialism, in turn, typically produces segregation and institutionalised discrimination. This was the case in European colonies historically, it was the case in the apartheid regimes in southern Africa, and it is the case in Palestine today. Zilbershats fails to address the deep structural entanglement of the regimes of occupation, colonialism and apartheid that we describe in the Palestinian territories, clinging instead to the superficial image of mutually exclusive types of fruit.

The “Terrorism” Smokescreen

The second hook on which Zilbershats’ reply hangs is, predictably, the trite claim that Israel’s ‘uniquely complex’ security concerns create an exceptional situation. Historical context and the colonial nature of Israel’s control system are again effaced. Palestinians are presented as innately and collectively predisposed to violence: ‘The Palestinians en masse have employed a strategy of terror against Israeli civilians in the occupied territories and within the Green Line.’

The use of the “terrorist” label to discredit political opponents is of course not unique to Israel but a standard feature of colonial rhetoric, stemming most prominently from the states of emergency that marked the twilight of European empire in Malaya, Kenya, Algeria, northern Ireland, and so on. South Africa was no different; once the stigmatising effect of the “communist” tag had run its course, the apartheid regime took to branding anti-apartheid activism in all of its diversity under the reductive rubric of terrorism. This has now become a standard routine in the state repertoire, be it in Colombia, Syria or Sri Lanka, through the global proliferation of the nomenclature of national security and counter-terrorism. The presence of Nelson Mandela on a number of US terrorist watch lists until 2008 is testament to the vacuousness of the term.

A discernible Global North—South divide can be found in the ongoing impasse over the definition of terrorism at the General Assembly Sixth Committee’s Ad Hoc Committee on International Terrorism, where political struggle is waged over the scope and content of legal terminology. Contested understandings of how terrorism is best defined are rooted in the desire to encompass the behaviour of one’s adversary without overly restricting the actions of oneself or one’s ally. At the heart of the wrangling is the question of the state’s monopoly on the legitimate use of violence, and related polarisation over the status of national liberation movements and the possibility of state terrorism. In Israel’s case, for example, military orders applicable to the West Bank entail an expansive definition of terrorism for acts by Palestinians, with the damaging of military facilities and the harming of occupying forces criminalised as terrorist acts. At the same time, Israel is itself among the states whose military actions affecting civilians are frequently perceived as state terrorism. Israel therefore remains, along with the north Atlantic powers, insistent on the exclusion of state armed forces from the purview of any definition of terrorism. There is considerable opposition to this from Global South nations, with the Organisation of Islamic Cooperation having proposed alternative wording that allows for the potential inclusion of state acts within the rubric of terrorism.

Significantly, when raising the terrorism smokescreen, Zilbershats does not dispute the existence of entirely distinct legal systems for the two population groups within the same territory, their physical segregation by the Wall and other infrastructure or the allocation of roads for exclusive Jewish-Israeli use. She acknowledges the codified and institutionalised separation, but defends it as necessary on security grounds. As such, her invocation of terrorism echoes that of the South African apartheid regime.

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What is perhaps most striking about Zilbershats’ reply is the degree to which she depends on the Israeli judicial system as support for arguments that mimic those of the Israeli state. The South African regime likewise relied on the decisions of its own courts upholding apartheid measures as evidence of their legitimacy. Apartheid is a profoundly legalistic system in how it is constructed, and the courts in South Africa were central to its perpetuation there. By invoking and quoting Israel’s Supreme Court at length, without questioning or considering its politics, Zilbershats finds herself able to ‘categorically state that Israel’s actions are motivated by sincere considerations of security and not the wish to dominate’. She aligns herself uncritically with the occupier’s judicial apparatus and turns a blind eye to contentions made by prominent Israeli legal scholars and practitioners that the Supreme Court functions as a pressure valve serving, overall, to legitimise and empower the colonial regime in the occupied territories.

The corollary of this is that judicial opinion on the international plane is relegated to passing mention at best. The advisory opinion of the International Court of Justice is noted only briefly to the effect that it digresses from Israeli Supreme Court rulings that affirm the legality of the Wall through Palestinian territory; the clear implication being that such digression is misguided. The 2012 concluding observations of the UN Committee on the Elimination of Racial Discrimination, which took the step of censuring Israel under the rubric of apartheid and segregation, are ignored by Zilbershats. The Committee, having reiterated previous concerns about the general segregation of Jewish and non-Jewish communities under Israeli jurisdiction, declared itself ‘particularly appalled at the hermetic character of the separation’ between Jewish and Palestinian populations in the occupied Palestinian territory and urged Israel to prohibit and eradicate policies and practices of racial segregation or apartheid that ‘severely and disproportionately affect the Palestinian population’.

So, much as Zilbershats might wish to downplay the nature of institutionalised discrimination against the Palestinians (and to evade the multiple elephants in the room: the construction of a distinctly Jewish nationality in Israeli law; the exclusion of Palestinian refugees and privileging of Jewish “return” through carefully crafted immigration and citizenship laws; the role of the parastatal Jewish-national organisations in preserving racially contingent land and planning policies), there is an increasing cognisance internationally of the gravity of the situation. While Palestinians themselves have long been all too aware of this, Israeli scholars are slowly beginning to reckon with the reality as well. In February of this year, a group of Israeli lawyers and intellectuals came together under the banner of a conference entitled “Is Israeli Apartheid possible?” As Oren Yiftachel points out, this ‘appears to be the first time in Israel’s history’ that the issue has been discussed openly and collectively by Israeli scholars, and now, after two decades of isolated instances of critical scholarship, the reality of Israel’s colonial and apartheid order is ‘finally entering parts of the mainstream’. Establishment Israeli academics may not be able to remain in denial forever.

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[…] Be sure to also read Reynold and Dugard’s response to Zilbershats at EJIL:Talk. […]

About the Author(s)

John Dugard & John Reynolds

John Dugard is Emeritus Professor of International Law at the University of Leiden and Honorary Professor in the Centre for Human Rights at the University of Pretoria. He served as a member of the International Law Commission from 1997–2011 and as UN Special Rapporteur on the human rights situation in the Occupied Palestinian Territory from 2001–2008. He has also served as judge ad hoc on the International Court of Justice.
John Reynolds is the EJ Phelan Fellow in International Law at the National University of Ireland, Galway. Read Full